Now that the National Labor Relations Board ("NLRB") has a quorum (meaning that at least three of the five NLRB members have been properly appointed) and the Senate changed the filibuster rules, the board is free to pursue the pro-union agenda that was thwarted by the NLRB’s quorum problems. Among many other initiatives, the NLRB is likely to take two significant actions in the near future.
Re-enact New Election Rules
The NLRB is expected to adopt some or all of the new election rules it originally proposed and partially enacted in 2011. A federal court struck down these rules due to the NLRB’s lack of a quorum, but in February 2014, the NLRB re-proposed the rules and held a hearing on them in April. The NLRB is virtually certain to re-enact some or all of these rules this year.
The only purpose of these rules is to help unions win elections. Our Aug. 18, 2011, article "NLRB Proposed New Election Rules Favoring Unions" described the new election rules in detail. These rules are intended to make it much more difficult for employers to: (1) challenge a union’s proposed bargaining unit; (2) campaign against a union; and (3) consult effectively with counsel. Absent special circumstances, pre-election hearings will be held only about a week after the union files its petition for an election. To contest the union’s handpicked unit, an employer would be forced to have a legally binding statement of position prepared by the pre-election hearing, which would give the employer very little time to engage counsel, investigate complex legal issues and decide what bargaining unit makes sense for the employer’s operation. Moreover, failing to prepare a timely statement of position could result in waiving legal objections.
Under these rules, a union election could occur as quickly as 10 days after the petition is filed, as opposed to the current 30 to 40 days. This would provide unions with a major advantage. Unions only file a petition when they think they have at least majority support (and preferably supermajority support). So, an employer always starts out behind. The rules give employers very little time to try and catch up.
Employers must prepare for these new rules. Employers should identify union organizing activity as quickly as possible (before a petition is filed) and respond immediately. In addition, employers should consider steps such as training supervisors to reduce their vulnerability to union organizing before it begins. If employers discover union organizing activity, they should involve counsel immediately to try to minimize the disadvantages created by the new rules.
Revisit Register Guard
In another significant development, the NLRB recently announced it will revisit its decision in Register Guard. In Register Guard, the board recognized an employer's property rights and held that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” Section 7 purposes would include union organizing. Register Guard gave an employer control over its employees’ use of the employer's electronic communications systems, so long as the employer enforces its policies uniformly.
It is improbable that the NLRB is revisiting Register Guard to reaffirm the decision (the Democratic board members dissented from the original decision). Assuming the Board concludes that employees have a right to use their employer’s e-mail and other electronic communications systems for union purposes, it is unclear what standard of employee access will be established or what, if any, restrictions an employer will be able to place on such access. Employers will need to review, and will likely be forced to change, their electronic communications policies after the NLRB’s decision. We will continue to monitor this issue and pass on any developments.